On Thursday, the court ruled Alexander v. South Carolina Conference of the NAACP. What’s unique about this redistricting case is that it is governed directly by the Constitution rather than by the Voting Rights Act. The court was evenly divided 6-3 along the left-right line. Most agree that race does not play a dominant role in the drawing of congressional districts. Justice Alito’s majority opinion provided the Legislature with a presumption of good faith. The court held that the Legislature, at best, sought to reduce the political power of Democrats. I don’t have much to say about these doctrinal views of the majority, or about Justice Kagan’s dissenting opinion.
Instead, I focus on the usual place: Justice Thomas’s concurrence. “Separately,” he wrote, “is the question of whether our voting rights precedents are faithful to the Constitution.” Thomas explained that the court “has no authority” to decide these redistricting claims under the Constitution. Thomas’s views are usually met with backlash from the media, but as usual, he moved the Overton window and is now talking about whether the VRA may be unconstitutional.
First, Justice Thomas explained that there is no judicially administrable standard to address such claims of racial gerrymandering. Thomas echoes here Rucho: “Determining the proper shape of a district is a political question not suitable for resolution by the federal courts.” In this regard, Judge Thomas saw no difference between political gerrymandering and racial gerrymandering.
Second, Justice Thomas wrote that “the Constitution does not contemplate any role for the federal courts in the gerrymandering process.” He wrote that the election “clause makes Congress exclusive The federal government’s efforts to draw congressional districts preclude states from having jurisdiction over the courts.
Third, Justice Thomas noted that the Fourteenth and Fifteenth Amendments did not provide “a textual basis for the judicial resolution of zoning claims.” Instead, Thomas explained, “the Reconstruction Amendments are fully consistent with Congress’s exclusive power to oversee congressional districts.” Thomas quoted Chris Green as saying that the Equal Protection Clause is only concerned with protecting people and property from violence, not discrimination. Again, the Privileges or Immunities Clause, the Citizenship Clause, and the Due Process Clause are irrelevant to this issue. By contrast, “clearly provides for non-judicial remedies for violations of voting rights” [Section 2 of the Fourteenth Amendment] It is recommended not to read Article 1 to allow for implied judicial remedies in these same voting rights disputes. Oka is probably the only person on the planet with actual expertise in #2 and #3. Arguments for Ethnic Voter Voting Patterns” [are] Decentralized.
Thomas concluded:
At this moment, I see No instructions Under the Reconstruction Amendments, the courts were responsible for regulating the lines between political districts. Instead, the Elections Clause leaves the responsibility entirely to Congress for overseeing how states draw congressional districts.
Thomas makes these points in the context of justiciability, but I think they are much broader in scope. If the text of the Fourteenth and Fifteenth Amendments does not provide any textual authority regarding redistricting, then these provisions cannot serve as jurisdictional hooks for the Voting Rights Act. Frankly, if Thomas is right about the Fourteenth and Fifteenth Amendments, the Voting Rights Act cannot constitutionally apply to redistricting. Federal courts absolutely cannot redraw the map. This would be a huge shift in the law. To be sure, only Judge Thomas came to this conclusion. But his personal perspective had a way of planting seeds and taking root.
Fourth, Justice Thomas raised the question of whether federal courts have equitable authority to draw remedial maps.
The Supreme Court’s insistence on ruling racial gerrymandering and vote dilution also allows it to ignore constitutional limits on its remedial power. Ultimately, the only remedy for the constitutional harm caused by illegal mapping is a new map. However, federal courts lack “the power to formulate remedies previously unknown in equity.” Mexican Development Group, SA v. alliance bond fund corp., 527 U.S. 308, 332 (1999). Moreover, there is “no indication that the Framers ever heard of the courts” playing any role in resolving electoral gerrymandering issues. Rucho588 U.S., p. 699.
Thomas concluded:
No court has explained where the power to draw alternative maps came from, but all courts now take it as a matter of course that it can be exercised.
again, Alexander Governed by the Constitution, not the Voting Rights Act. Seth Barrett Tillman and I have written extensively about whether political parties can seek affirmative relief under the Constitution without a federal cause of action. Less than a month ago, Justice Thomas wrote for the unanimous Court de Villiers v. Texas, “Constitutional rights are often invoked defensively in cases arising under other sources of law, or asserted offensively on independent causes of action designed for that purpose.” Tillman and I consider this passage important. Thomas may have been thinking Alexander.
I may have more to say on the issue of fairness in due course. Relatedly, the Eighth Circuit held that the Voting Rights Act did not create an implied cause of action. The issue is now before the en banc Fifth Circuit.
Finally, Judge Thomas weighed in on an issue that is deeply personal to him: The majority of black voters are Democrats, so any effort to reduce the political power of the Democratic Party will inevitably reduce the political power of black voters.
As the court observed, approximately 90 percent of South Carolina’s black voters supported the Democratic candidate in the last presidential election. Ante, 4, n. 2. When nearly all black voters support Democrats, efforts to strategically classify Democratic voters may be no different from efforts to strategically classify black voters. In this case, all Democratic-leaning maps submitted during the districting process showed Black voters making up 21% or more of the voting-age population, while all Republican-leaning maps showed Black voters making up 17% or less . Ant, 15 years old. The issue at issue in this case, therefore, is whether this correlation reflects a racial purpose or merely the outcome of a political purpose.
Judge Thomas also reversed this argument, as the plaintiffs claimed that black people who are not Democrats cannot represent black voters:
Therefore, the plaintiffs’ argument assumes that the “candidate of choice” for black voters is only black candidates. But the stereotype is worse than that. In 2016, South Carolina re-elected Republican Tim Scott to the U.S. Senate; Scott was the first black senator from the South since Reconstruction. Still, the plaintiffs and their experts argued that the game was no “Considered as proof of black electoral opportunity.” added. Applications. to Law. Statement 174a. Thus, the plaintiffs’ argument combines two stereotypes, assuming that black South Carolinians can only be properly represented by black people. Democratic Party.
Preach CT.
